Best v. Johnson

Filing 85

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Senior Judge Neal B. Biggers on 01/19/2017. (bds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
DAWN L. BEST

PLAINTIFF

V.

CIVIL ACTION NO. 1:15-CV-00086-NBB-DAS

WILLIAM D. JOHNSON, PRESIDENT
AND CHIEF EXECUTIVE OFFICER OF
TENNESSEE VALLEY AUTHORITY

DEFENDANT

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The trial of this cause was held on September 19th and 20th of 2016. The plaintiff Dawn
Best sued Bill Johnson, President and CEO of Tennessee Valley Authority, for violating Title
VII and the Age Discrimination in Employment Act (“ADEA”). The jury returned a verdict in
TVA’s favor on Plaintiff’s Title VII claim. (See Doc. 80.) For the reasons stated in its Order on
Defendant’s Motion to Strike Plaintiff’s Jury Demand (Doc. 69), Plaintiff’s ADEA claim was
tried before the Court. At the conclusion of trial, and after considering the proffered documents
and testimony, the Court found on the record that Plaintiff failed to prove her ADEA claim. (See
Doc. 73.) Having found for Defendant, the Court now enters its findings of fact and conclusions
of law pursuant to Federal Rule of Civil Procedure 52(a). Ramirez v. Hofheinz, 619 F.2d 443,
445 (5th Cir. 1980) (“In a trial without a jury, the judge, as the trier of fact, must state, with some
degree of precision, his findings of fact and conclusions of law.”)
I. Findings of Fact
1.

TVA is a corporate agency and instrumentality of the United States of America.

16 U.S.C. §§ 831 to 831ee. Its transmission systems in North America span over 16,000 miles
and serve 9 million people in portions of seven states. http://www.tva.com/power/xmission.htm.
TVA sells its electricity to 154 local power company customers, as well as to 59 directly served
industries and federal facilities. https://www.tva.gov/Energy/Our-Customers.

2.

TVA’s extensive transmission system covers roughly one third of Mississippi.

Through 28 municipal and cooperatively owned local power companies, TVA serves 36
Mississippi counties and provides power to more than 337,700 households. Additionally, it
provides electric power to eight directly served industrial customers. These relationships
throughout the state resulted in TVA power sales in Mississippi totaling approximately $1.2
billion in fiscal year 2015. https://www.tva.gov/About-TVA/TVA-in-Mississippi. TVA is
broken down into seven districts to serve its local power companies, and Mississippi is one of
those districts. (Wardlaw Direct, Trial Tr. Vol. II, 104:24-105:2.)
3.

Plaintiff Dawn Best has an electrical engineering degree from Mississippi State

University. (Best Direct, Trial Tr. Vol. I, 51:22-24.) TVA hired Plaintiff as a power utilization
engineer shortly after she graduated from college in 1979. (Best Direct, Trial Tr. Vol. I, 52:653:8.) Plaintiff worked at TVA for almost three years, then left to work at various jobs in
Florida. She returned to TVA in 1989, and resumed her work as a power utilization engineer.
Plaintiff served in various engineering roles until she became a customer service manager in
1997. (Best Direct, Trial Tr. Vol. I, 54:7-22; 56:12-14; 57:18-58:13; 60:7-16; 62:2-23; 64:20-25;
Pl.’s Ex. 2.) In that job, she worked with TVA’s municipal and cooperative power distributors.
(Best Direct, Trial Tr. Vol. I, 66:14-67:6.) Although her job title and level changed, Plaintiff
remained in this customer service role until 2011. (Best Direct, Trial Tr. Vol. I, 67:10-68:12;
Pl.’s Ex. 2.) In 2011, Plaintiff took a job as an industrial accounts manager in Mississippi. (Best
Direct, Trial Tr. Vol. I, 68:13-69:2; Pl.’s Ex. 2.)
4.

This gender and age employment discrimination case arises from Plaintiff’s non-

selection as TVA’s Mississippi Customer Delivery General Manager (hereinafter, “General

2

Manager”), which is the highest-ranking TVA job in the state of Mississippi. (Wardlaw Direct,
Trial Tr. Vol. II, 98:14-20.)
5.

Plaintiff applied for the General Manager job on January 15, 2013. (Best Direct,

Trial Tr. Vol. I, 72:3-73:4; Pl.’s Ex. 37.)
6.

Van Wardlaw was the decision-maker for the General Manager selection.

(Wardlaw Direct Trial Tr. Vol. II, 98:8-13.) Mr. Wardlaw has spent his entire career at TVA,
and currently serves as its Executive Vice President of External Relations. (Wardlaw Direct,
Trial Tr. Vol. II, 103:5-104:4.)
7.

When the General Manager position came open, Mr. Wardlaw testified that he

had the discretion to “just pick someone that [he] thought was ready for the position based on
[his] judgment.” However, he chose to publicly post the position because TVA “had several
good candidates internally” and because there were also “several people outside of TVA that [he]
thought could potentially do the job,” so he “wanted to open up that opportunity and see who the
best candidate was.” (Wardlaw Direct, Trial Tr. Vol. II, 106:5-19; Brown Direct, Trial Tr. Vol.
II, 66:8-20; 69:13-17; Def’s Ex. 27.)
8.

Mr. Wardlaw worked with Human Resources to post the position, but he did not

directly involve himself in the posting process. (Wardlaw Direct, Trial Tr. Vol. II, 107:5-14.)
9.

As part of the initial steps of its selection process, TVA also conducted a “records

review” of the applicants’ competencies. This includes things like job history, performance
reviews, and experience. This was the “first hurdle” in the selection process. The records
review was not determinative; it was only a one of many “hurdles” in the selection process. The
purpose of having these multiple “hurdles” was to create “several data points to insure you’re

3

making a well-informed decision.” (Brown Direct, Trial Tr. Vol. I, 134:1-21; 134:22-135:8;
Brown Direct, Trial Tr. Vol. II, 62:21-64:7.)
10.

The top candidates following the records review proceeded to the next hurdle,

which was an interview. Mr. Wardlaw did not participate in these interviews, but instead formed
a team to conduct them. Mr. Wardlaw’s goal at this stage was for the interview team to screen
the candidate pool and bring the number of applicants down to a more manageable number, from
which he could then make the final selection decision. He also wanted to bring together “a
diverse group of folks” to weigh in on the decision. (Wardlaw Direct, Trial Tr. Vol. II, 108:21109:18; Campbell Direct, Trial Tr. Vol. II, 49:22-50:1.)
11.

Plaintiff testified that five people interviewed her during the first round: Joie

Brown (Human Resources); Rick Misso (Mississippi Customer Service Manager); Jimmy Allen
(Senior Advisor to Van Wardlaw); Laura Campbell (Memphis District General Manager); and
Jim Keiffer (Middle Tennessee General Manager). (Best Direct, Trial Tr. Vol. I, 73:15-74:2.)
Plaintiff brought to the interview a resume, a “90-day plan,” and letters of recommendation from
several general managers at various Mississippi local power companies. (Best Direct, Trial Tr.
Vol. I, 74:5-12; see also Pl.’s Exs. 35, 26-34.)
12.

Joie Brown confirmed that she participated in the first round of interviews.

(Brown Direct, Trial Tr. Vol. I, 124:21-22.) Ms. Brown testified that the interview team asked
the applicants the same questions, took copious notes, and, at the end of the interview, came to a
consensus to rate each candidate’s interview performance. (Brown Direct, Tr. Vol. I, 138:1724.) Ms. Brown did not remember the exact details of the interview, but she did remember
thinking that Plaintiff did not perform as well as the other candidates. (Brown Direct, Trial Tr.
Vol. I, 139:5-140:25.)
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13.

Laura Campbell, who is now TVA’s Vice President of Customer Delivery, also

confirmed that she participated in the first round of interviews. (Campbell Direct Trial Tr. Vol.
II, 47:1-6.) At the time she sat on the interview panel, Ms. Campbell did not know the ages of
any of the applicants; in fact, at the time, she thought that John Malone (the eventual selectee)
was older than Plaintiff. (Campbell Direct, Trial Tr. Vol. II, 50:2-17.) Ms. Campbell did not
remember the specific details of the interviews, but she did remember that John Malone “stood
out.” She remembered that he “really showed a passion for wanting to lead Mississippi and
really kind of dazzled,” and that “he brought on a lot of charisma towards the end and linked a
lot of the broader initiatives that TVA was looking to achieve to what he could bring to
Mississippi.” (Campbell Direct, Trial Tr. Vol. II, 50:18-51:2.)
14.

At the end of the first interview, the team recommended that Tommy Jackson (age

unknown), Reggie Bowlin (age unknown), John Malone (49 years old), and Bill Duke (age 55)
proceed to a final round of interviews. Plaintiff was not among the candidates that the team
recommended to move forward. The team told Mr. Wardlaw that they felt the Plaintiff had not
performed well in the interview. (Wardlaw Direct, Trial Tr. Vol. II, 110:8-111:8; Def.’s Ex. 22.)
15.

Notwithstanding the interview team’s recommendations, Mr. Wardlaw chose to

invite Plaintiff to the final round of interviews. He did this because he thought Plaintiff was a
long-term employee who had done “an admirable job as [a] customer service manager.” Thus,
Mr. Wardlaw felt that “she deserved the opportunity to be looked at one last time.” (Wardlaw
Direct, Trial Tr. Vol. II, 111:9-18.)
16.

The final candidates who Mr. Wardlaw interviewed were Plaintiff, John Malone,

and Bill Duke. The final interviews were conducted by Van Wardlaw, Jimmy Allen, and Laura
Campbell. (Wardlaw Direct, Trial Tr. Vol. II, 111:19-25; Best Direct, Trial Tr. Vol. I, 79:6-13.)
5

17.

Mr. Wardlaw was looking for four attributes during the interview, and he and his

team asked interview questions that aligned with those attributes. (Wardlaw Direct, Trial Tr.
Vol. II, 112:17-113:9; 114:6-9; Def.’s Ex. 40.)
18.

The first factor was “leadership, management, previous managing experience.”

(Wardlaw Direct, Trial Tr. Vol. II, 113:19-21.) This was important because the General
Manager is responsible for creating a “good, positive work environment where people can come
to work every day and feel appreciated.” (Wardlaw Direct, Trial Tr. Vol. II, 114:16-115:6.)
Neither Plaintiff nor Mr. Malone had extensive experience in that area, so Mr. Wardlaw “graded
them about the same level.” (Wardlaw Direct, Trial Tr. Vol. II, 115:8-14.)
19.

The second factor was how well the candidate worked with customers. (Wardlaw

Direct, Trial Tr. Vol. II, 113:16-21.) Specifically, Mr. Wardlaw was looking at which candidate
would be able to build on TVA’s positive relationships with its customers in Mississippi.
(Wardlaw Direct, Trial Tr. Vol. II, 115:21-24.) Both Mr. Malone and Plaintiff had “done a really
nice job” working with their respective customers. On this factor, Plaintiff “may have had a little
bit of an edge, but they were basically close.” (Wardlaw Direct, Trial Tr. Vol. II, 115:25116:11.)
20.

The third factor was “networking skills,” which refers to whether someone has the

“ability to get things from the bigger TVA into this particular part of the country. . . .” (Wardlaw
Direct, Trial Tr. Vol. II, 113:22-25.) To be successful as a General Manager, you have to “be
very, very good at understanding how TVA, the bigger corporation, operates and runs.”
(Wardlaw Direct, Trial Tr. Vol. II, 117:7-11.) Mr. Wardlaw was personally familiar with this
skill, as he had spent a lot of time in Mississippi in the earlier part of his career, and it was not
until he worked at other parts of the agency that he “fully understood the criticality of competing
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for resources and skills and that sort of thing.” (Wardlaw Direct, Trial Tr. Vol. II, 117:12-19.)
Mr. Malone was stronger than Plaintiff on this factor, given that he had worked in TVA
corporate in Chattanooga, and had also worked at other parts of TVA. (Wardlaw Direct, Trial
Tr. Vol. II, 117:23-118:11.)
21.

The fourth factor was “executive skills,” or the “ability to lead” and “to represent

TVA as the face of TVA in the state of Mississippi.” (Wardlaw Direct, Trial Tr. Vol. II, 114:25.) This was important to the General Manager position because that person “has to be very
poised, has to be very confident, has to be a good communicator, a very good public speaker.”
The General Manager may often have to speak in public, must deal with high-ranking officials,
and must “stay very calm, very cool, very collected” under stress. (Wardlaw Direct, Trial Tr.
Vol. II, 118:24-119:18.) Mr. Wardlaw also described this factor as “executive presence.” Mr.
Wardlaw testified that when he considers that term, he is “[t]hinking about poise, confidence,
public speaking, problem solving, conflict resolution, dealing with stressful situations and
environments, and doing that in a way that gives people confidence that . . . everything’s going
to be okay; that you understand the situation; that you’re going to work hard.” (Wardlaw Direct,
Trial Tr. Vol. II, 119:23-120:4.)
22.

On this fourth factor, Mr. Wardlaw testified that Mr. Malone was “solidly ahead.”

(Wardlaw Direct, Trial Tr. Vol. II, 121:14-17.) Mr. Wardlaw observed that “[d]uring the
interview process, [Mr. Malone] handled himself extremely well, answered these questions very
thoroughly, stayed on point, was very consistent with his message, did not flinch when we were
pressuring him a little bit to get more detailed about a particular question.” Mr. Wardlaw also
noted that he had known both Plaintiff and John Malone for 25 years, during which he had
observed them in forums, meetings, and public speaking engagements. (Wardlaw Direct, Trial
7

Tr. Vol. II, 121:19-122:5.) As compared to Mr. Malone, the testimony was that the Plaintiff
“had a tendency to ramble, to come off point, to come off topic, to say a lot of words that really
weren’t relevant to the question that was being asked” and that these tendencies “can get you in a
lot of trouble in public speaking environments, especially with the media.” Mr. Wardlaw further
testified that this “tendency on her part gave [him] a lot of pause relative to [the plaintiff’s]
ability to be successful in this job.” (Wardlaw Direct, Trial Tr. Vol. II, 122:6-15.)
23.

Laura Campbell, who previously worked in a General Manager role and is

personally familiar with the necessary skills for the job, confirmed the importance of executive
presence. (Campbell Direct, Trial Tr. Vol. II, 49:1-7; 53:15-20.) She testified that this means
“the ability to really speak forthrightly and with confidence and poise, particularly under
pressure.” (Campbell Direct, Trial Tr. Vol. II, 52:6-8.) Ms. Campbell felt this was important for
the Mississippi General Manager position because it is the highest-ranking job in the state, and
“this person represents TVA both in times of great pressure−but also in statewide events and, so,
must project a good image for TVA.” (Campbell Direct, Trial Tr. Vol. II, 52:15-19.) Ms.
Campbell testified that John Malone showed executive presence because “he’s always been
poised, particularly in tough times. He’s able to take bigger issues and boil them down and
communicate them in an effective way, both for his internal team and for the customers at large.”
(Campbell Direct, Trial Tr. Vol. II, 53:2-10.)
24.

Mr. Wardlaw did not make a decision immediately following the interview

process. He testified that “[he] knew both of these individuals, knew both of them were
excellent employees, would do a really good job, [and he] had to deliberate quite a while and go
back and forth on which way [he] should go here and sought additional counseling with folks to

8

try to gain more data points before [he] finally drew [his] final conclusion that John was the best
choice.” (Wardlaw Direct, Trial Tr. Vol. II, 123:5-11.)
25.

One of the people that Mr. Wardlaw sought input from was Dr. David Deviney,

who was a “consultant psychiatrist/psychologist [who] does reviews of people to look at their
attributes, their personalities, their traits.” (Wardlaw Direct, Trial Tr. Vol. II, 124:18-23.) Dr.
Deviney opined that “John [Malone] was very consistent in his messaging, able to stay on point
and articulate the message. [Plaintiff] had a tendency to ramble, get off point.” (Wardlaw
Direct, Trial Tr. Vol. II, 124:1-4.)
26.

Another manager at TVA, Steve Chunn, also reinforced that he thought John was

the stronger candidate. (Wardlaw Direct, Trial Tr. Vol. II, 124:8-17.)
27.

Mr. Wardlaw testified that he took several months to make the General Manager

selection because it was important for him to “get it right” both personally and professionally.
He testified that he worked for TVA in Mississippi for many years and has family there, so he
felt that his reputation and legacy were at stake in the sense that all of the people who he had
worked with over the years would be impacted by his decision. (Wardlaw Direct, Trial Tr. Vol.
II, 137:10-138:14.) Mr. Wardlaw went as far as to write draft job announcements for both John
Malone and Plaintiff to further his deliberations. (Wardlaw Direct, Trial Tr. Vol. II, 124:18127:11.)
28.

Ultimately, however, Mr. Wardlaw “had to make the call.” He selected John

Malone in April 2013. (Wardlaw Direct, Trial Tr. Vol. II, 127:16-17; Best Direct, Trial Tr. Vol.
I, 83:3-5.)
29.

John Malone was 49 years old at the time of the selection; Plaintiff was 56.

(Malone Direct, Trial Tr. Vol. I, 159:1-8; Best Direct, Trial Tr. Vol. I, 51:1-2; 94:21-23.) Mr.
9

Wardlaw did not know the exact ages of John Malone and Plaintiff at the time of the selection,
but he did know that John Malone was probably “slightly younger” than him, and that Plaintiff
was “slightly older” than him, simply based on the number of years that each of them had
worked at TVA. (Wardlaw Direct, Trial Tr. Vol. II, 136:12-20.)
30.

Mr. Wardlaw testified that he did not take the candidates’ ages into consideration.

(Wardlaw Direct, Trial Tr. Vol. II, 136:25-137:6.)
31.

Laura Campbell, who was involved in both the initial and final interview rounds,

corroborated this. For her part, she testified that Mr. Wardlaw did not mention age during the
selection process, and that she did not observe Mr. Wardlaw treating Plaintiff any differently
than the other candidates. (Campbell Direct, Trial Tr. Vol. II, 51:6-18.)
32.

Plaintiff presented several theories at the trial why she was not selected for the

General Manager job based on her age. Her primary theory was that she was better qualified
than the selectee, John Malone. In support of that theory, Plaintiff pointed out that during the
year immediately preceding her interview for the General Manager position, she received an
“Exceeds” on her performance review, which is TVA’s best possible performance review rating.
(Best Direct, Trial Tr. Vol. I, 79:14-19; see also Pl.’s Ex. 23.) In the year immediately preceding
the Mississippi General Manager selection, John Malone received a “Meets” performance review
rating, which is less than an “Exceeds” rating on TVA’s scale. (Malone Direct, Trial Tr. Vol. I,
172:6-15; Pl.’s Ex. 11.)
33.

Joie Brown testified that, in this particular selection, TVA did not use

performance review history as part of its records review because there were several job
candidates from outside TVA for whom job performance history was not available. Thus, there

10

were no consistent performance history criteria to be applied to all candidates. (Brown Direct,
Trial Tr. Vol. II, 64:18-65:18; Pl.’s Ex. 39.)
34.

Mr. Wardlaw also testified that Plaintiff’s higher performance review did not

affect his decision-making because “[r]atings on lower level jobs, as long as they were
satisfactory, create the entry point [to be considered for the job].” (Wardlaw Direct, Trial Tr.
Vol. II, 129:24-130:1.)
35.

Also in support of her theory that she was clearly better qualified than Mr.

Malone, Plaintiff proffered evidence that she received recommendation letters from many of
TVA’s Mississippi local power companies. (Pl.’s Exs. 24-36.) The heads of three of those local
power companies—Terry Kemp, Johnny Timmons, and Wayne Henson—all testified at trial that
they recommended Plaintiff for the job, and that they believed she would have been wellqualified for the role. (Timmons Direct, Trial Tr. Vol. I, 116:3-13; Henson Direct, Trial Tr. Vol.
II, 18:2-19:13; Kemp Direct, Trial Tr. Vol. II, 8:15-25; Kemp Direct, Trial Tr. Vol. II, 12:20-25;
see also Pl.’s Exs. 24-36.) However, each of these witnesses also testified that they were not
familiar with Mr. Malone at the time of the selection and, therefore, could not compare his
qualifications and/or interview performance to Plaintiff’s. (Timmons Cross, Trial Tr. Vol. I,
121:17-122:3; Kemp Direct, Trial Tr. Vol. II, 13:1-7; 15:7-25; Henson Direct, Trial Tr. Vol. II,
19:14-16; 20:10-25.)
36.

Joie Brown testified that TVA does not generally require recommendation letters

as part of its selection process. She has never been involved in a selection process where
recommendation letters were required. (Brown Direct, Trial Tr. Vol. II, 65:19-66:7.)
37.

Mr. Wardlaw similarly testified that he did not consider Plaintiff’s

recommendation letters in his final decision because it would not have been fair, given that
11

neither Mr. Malone nor Bill Duke (the other final candidate) had any letters that Mr. Wardlaw
could compare to Plaintiff’s. (Wardlaw Direct, Trial Tr. Vol. II, 130:2-23.)
38.

In further support of her theory that she was clearly better qualified than Mr.

Malone, Plaintiff asserted that Mr. Malone did not have seven years of “management of complex
customer issues,” as set forth in the minimum qualifications of the vacant position
announcement. In contrast, Plaintiff testified that she “exceeded” the minimum qualifications for
the job, and that she had “over 17 years of management.” (Best Direct, Trial Tr. Vol. I, 71:1124; 85:2-5.) Throughout her testimony, Plaintiff differentiated between her TVA jobs that were
union jobs (i.e., jobs represented by an engineering union) and her TVA jobs that were
“management” jobs (i.e., jobs not represented by any union). (See Best Direct, Trial Tr. Vol. I,
53:12-54:6; 63:8-24; 66:7-13; see also Pl.’s Ex. 2.)
39.

Although Plaintiff did not herself testify about the meaning of the term

“management of complex customer issues,” her counsel suggested at trial that this means that the
General Manager must have worked in a job that was on TVA’s “management & specialist” pay
scale. Joie Brown, who works in Human Resources and is familiar with the vacant position
announcement, testified that it does not require a certain amount of years in a “management”
position; rather, it means what it says: “management of complex customer issues.” (Brown Redirect, Trial Tr. Vol. II, 96:3-97:15.)
40.

Plaintiff’s testimony emphasized “Form 1” documents outlining her and Mr.

Malone’s respective job histories. On the “Form 1,” the column labeled “schedule/grade” refers
to the employee’s pay scale at TVA. “M” refers to “management & specialist” employees,
which are those positions that are not union-represented. This does not speak to an employee’s
actual job duties; it only indicates whether the employee is paid according to a TVA pay scale or
12

a union-negotiated pay scale. The “M” is used for a wide range of jobs, such as human resources
generalists, consultants, analysts, managers, directors, senior managers, and recent college
graduates. (Brown Direct, Trial Tr. Vol. II, 69:24-71:23; Pl.’s Exs. 2-3; Malone Cross, Trial Tr.
Vol. I, 176:25-177:3.)
41.

Mr. Wardlaw did not have any involvement in screening the applicants for the

minimum qualifications. Monica Stevens, a TVA recruiter, is the person who decided that John
Malone and Plaintiff both met the minimum qualifications. (Brown Direct, Trial Tr. Vol. II,
91:2-9.) This would have occurred at the very first stage of the selection process. (Brown Redirect, Trial Tr. Vol. II, 96:7-17.)
42.

Mr. Wardlaw testified that the minimum qualifications for the job did not factor

into his decision-making, because they only told him that the candidates had the “acceptable
level of skills to be considered for a job.” He explained that the minimum qualifications are “not
an indication of what you will be when you go to the next level. We’ve all seen people that were
very good at a job that did not make good bosses.” (Wardlaw Direct, Trial Tr. Vol. II, 127:24128:8.) By the time the candidates had reached the final interview round, Mr. Wardlaw was
“pretty well confident that everybody [had] the basic skills to get to this particular part of the
interview.” (Wardlaw Direct, Trial Tr. Vol. II, 112:3-7.) He further explained: “at this juncture,
you’re really trying to begin to separate the difference from being a good manager or a good
worker in that group to being a leader of an organization, to being a leader of the state, if you
will, for the agency. So the bar’s going up quite a bit. And, so, the expectation and the skill set
you’re looking for are going to be quite different.” (Wardlaw Direct, Trial Tr. Vol. II, 112:8-14.)
43.

Mr. Wardlaw testified that it never crossed his mind that Mr. Malone was not

qualified for the General Manager position. (Wardlaw Direct, Trial Tr. Vol. II, 135:5-8.)
13

44.

Laura Campbell, who had been Mr. Malone’s immediate supervisor for the two to

three years immediately preceding his selection as General Manager, testified that it also never
crossed her mind that he was not qualified. She stated:
“John had a great background for the position. He has an engineering degree. He
had been with TVA and served in several different locations within TVA, so he
understood how to make things happen within the bigger organization. He had
served as a power utilization engineer, which is−roughly half the staff are power
utilization engineers, so he understood their challenges. And he had been a
customer service manager, so had worked with the customers. And, also, he had
been a transmission planner; so an engineer who oversees the planning and design
of the transmission system and−particularly for Mississippi. And so, he had . . .
both the relationships and the credibility with the customers.
(Campbell Direct, Trial Tr. Vol. II, 53:21-54:6-55:1.)
45.

Mr. Wardlaw testified that his performance as a TVA executive is judged based

on how successful TVA’s Mississippi office is. He would “most definitely not” want an
unqualified person in the role, because that “would make [his] life miserable.” (Wardlaw Direct,
Trial Tr. Vol. II, 105:17-24; 135:5-8.) Ms. Campbell similarly testified that she would not have
wanted an unqualified person in the General Manager role, because the person chosen would
have become her peer. (Campbell Direct, Trial Tr. Vol. II, 55:9-16.)
46.

The Court finds that Plaintiff was not clearly better qualified than Mr. Malone.

Upon reviewing all of the evidence, the Court notes that both candidates had similar
backgrounds and qualifications. And the Court finds credible Mr. Wardlaw’s detailed
explanations about why Mr. Malone outperformed Plaintiff in the final interview, which formed
the primary basis for his ultimate decision.
47.

The Court was also able to observe the demeanor of both Plaintiff and Mr.

Malone at trial, and finds that their demeanor was consistent with Mr. Wardlaw’s description of
their respective interview performance.
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48.

As to Plaintiff’s claim that Mr. Malone did not meet the minimum qualifications,

the Court finds that Plaintiff did not present any evidence tending to show that “management of
complex customer issues” equated to being paid according to TVA’s “management & specialist”
pay scale.
49.

Plaintiff also presented a theory that her direct supervisor, Gary Harris, harbored

animus toward older employees. Specifically, she testified that, after she was not selected, Mr.
Harris told her that she “had waited too late in [her] career to try to advance;” and that she was
“just too damn old.” (Best Direct, Trial Tr. Vol. I, 91:6-9; 93:19-94:19.) Plaintiff implied that
Mr. Harris somehow influenced Mr. Wardlaw’s decision, testifying generally that TVA relies on
information from immediate supervisors in making hiring decisions; however, she did not offer
any evidence to substantiate her theory. (Best Direct, Trial Tr. Vol. I, 93:6-11.)
50.

Plaintiff also called Leanne Whitehead, who was a TVA employee from 1985

until 2014, in furtherance of her theory. (Whitehead Direct, Trial Tr. Vol. II, 23:23-24:19.)
During her 29-year career at TVA, Ms. Whitehead participated on five interview panels.
(Whitehead Direct, Trial Tr. Vol. II, 25:15-20.) Based on these five selections, Ms. Whitehead
testified that it is “standard practice at TVA for the selection committee to get information from
each candidate’s direct supervisor prior to making any decision.” (Whitehead Direct, Trial Tr.
Vol. II, 25:21-26:3.) Mr. Wardlaw was not involved in any of the five selection panels that Ms.
Whitehead served on, (Whitehead Cross, Trial Tr. Vol. II, 30:2-7.) and none of the five
selection panels that Ms. Whitehead served on were for a General Manager job. (Whitehead
Cross, Trial Tr. Vol. II, 30:8-18.) Additionally, Ms. Whitehead has never worked in TVA
Human Resources; thus, other than the five selections she participated in, she did not have

15

knowledge of what TVA’s general hiring practices are. (Whitehead Cross, Trial Tr. Vol. II,
30:19-31:16.)
51.

Ms. Whitehead additionally testified that Gary Harris made age-based comments

toward her in December 2011 after she applied for a promotion at TVA. (Whitehead Direct,
Trial Tr. Vol. II, 26:19-27:13; 28:9-13.)
52.

Plaintiff admitted that Gary Harris was not the selecting official and that “as far as

[she] know[s],” Mr. Harris did not play any role in the General Manager selection. (Best Cross,
Trial Tr. Vol. I, 106:17-107:18.)
53.

Joie Brown testified that Mr. Harris was not involved in the portion of the

selection process that she participated in. (Brown Direct, Trial Tr. Vol. II, 69:18-21.)
54.

Mr. Wardlaw similarly testified that Mr. Harris did not play any significant role in

the selection process. (Wardlaw Direct, Trial Tr. Vol. II, 133:24-134:13.)
55.

Mr. Wardlaw is Gary Harris’s boss; Mr. Harris does not have any power or

control over Mr. Wardlaw. (Wardlaw Direct, Trial Tr. Vol. II, 134:18-22.)
56.

The Court does not find the testimony regarding Gary Harris’s alleged comments

to be probative of age discrimination in the hiring decision because there was no credible
evidence connecting Mr. Harris’s alleged statements to the selection process at issue.
57.

Plaintiff also argued that she had shown a “pattern and practice” of age

discrimination at TVA. Plaintiff testified about two other instances where TVA hired employees
who were younger than she into General Manager positions. (Best Direct, Trial Tr. Vol. I,
95:22-98:7.) She also testified that, at the time of her non-selection, there were seven General
Manager jobs at TVA, and that at least one of those positions was occupied by a younger person

16

“[i]n her 30s.”1 (Best Direct, Trial Tr. Vol. I, 99:24-100:10.) Shortly after, the younger person
was replaced by a “woman in her early 50s.” (Best Direct, Trial Tr. Vol. I, 100:11-17.) There
was, however, no evidence presented that Mr. Wardlaw was involved in all of these selections.
58.

Mr. Wardlaw testified that he had recently promoted at least two people over the

age of 55, Cindy Herron and Joe Hoagland. (Wardlaw Direct, Trial Tr. Vol. II, 135:22-136:8.)
59.

The Court finds that Mr. Wardlaw has promoted a number of individuals during

his career—both younger and older, and both male and female. Thus, the testimony did not
show any pattern by Mr. Wardlaw from which the Court could draw any inference of intentional
age discrimination in the General Manager selection.
60.

Plaintiff also complained that the selection process was not fair because it was

subjective in nature. The Court finds otherwise. Based on the testimony presented, the Court
observes that although the process TVA used contained some subjective components, Mr.
Wardlaw was able to describe in detail how the subjective factors directly related to the General
Manager job. The Court further notes that the same subjective standards were applied equally to
all job candidates, and that Mr. Wardlaw otherwise treated all candidates the same during the
selection process.
II. Conclusions of Law
61.

The Age Discrimination in Employment Act (“ADEA”) prohibits age

discrimination in personnel actions taken by the federal government. See 29 U.S.C. § 633a(a)
(stating that all federal personnel actions “shall be made free from any discrimination based on
age”). The Supreme Court has held that ADEA plaintiffs have the burden of proving by the

1

This person “[i]n her 30s” was Laura Campbell, who testified that she was, in fact, 47 years old at the time
of trial. (Campbell Direct, Trial Tr. Vol. II, 48:11-15.)

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preponderance of the evidence that their age was the “but-for” cause of the relevant adverse
employment action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
62.

This Court recognizes that Gross addressed the ADEA’s private-sector provision,

which provides that “it shall be unlawful for an employer [to take a personnel action] because of
such individual’s age.” 29 U.S.C. § 623(a) (emphasis added), and at least one circuit has
determined that Gross’s “but-for” standard only applies in this context. See Ford v. Mabus, 629
F.3d 198, 206 (D.C. Cir. 2010) (finding the federal-sector provision’s language broad enough to
allow plaintiffs to “prevail by proving that age was a factor in the employer’s decision”). At
least one other circuit disagrees. See Shelley v. Geren, 666 F.3d 599 (9th Cir. 2012) (“To prevail
on a claim for age discrimination under the ADEA, a plaintiff must prove at trial that age was the
‘but-for’ cause of the employer’s adverse action.”). This particular question is unanswered in the
Fifth Circuit. See Leal v. McHugh, 731 F.3d 405, 412 (5th Cir. 2013) (finding it unnecessary to
decide whether a federal plaintiff must prove but-for causation or some lesser standard under
§ 633a because . . . Appellants’ complaint states a claim for relief under the heightened, but-for
standard in Gross”).
63.

The Court finds no meaningful distinction between the ADEA’s private- and

federal-sector language and sees no reason to depart from the Court’s directive in Gross. This
analytical route is particularly appropriate in light of Gross’s declaration that a mixed-motive
theory “is never proper in an ADEA case.” 557 U.S. at 170 (emphasis added). The Court
concludes that Plaintiff failed to meet her burden, as required by Gross, to show by a

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preponderance of the evidence that age was the “but-for” cause of her non-selection for the
General Manager position.2
64.

The evidence showed that Mr. Wardlaw, who chose Mr. Malone over Plaintiff for

the General Manager position, did so for the legitimate reason that Plaintiff did not perform as
well as Mr. Malone in the final interview round. This final interview occurred after a multi-step
process in which other individuals—not Mr. Wardlaw—decided who would proceed. And when
those individuals did not view Plaintiff as having performed well enough during the first
interview to be considered in the final round, Mr. Wardlaw—the person Plaintiff claims
discriminated against her—nevertheless handpicked her to participate in the final stage based on
his positive experiences with her in the past. Plaintiff presented no evidence that her
performance during the final interview with Mr. Wardlaw was superior to the selectee’s, Mr.
Malone, and thus did not call into question the propriety of Mr. Wardlaw’s decision.
65.

Plaintiff nonetheless attempted to establish that age was the actual reason for her

non-selection by presenting evidence that (1) she was better qualified than Mr. Malone; (2) TVA
engaged in a pattern and practice of promoting only younger individuals; and (3) Plaintiff’s
supervisor, Gary Harris, made several comments about her age. None of these methods of proof
served to establish that Plaintiff’s age was the “but-for” cause of Mr. Wardlaw’s decision to
choose Mr. Malone over Plaintiff.
66.

With regard to Plaintiff’s argument that she was better qualified than Mr. Malone,

it is not sufficient for her to demonstrate that she is as qualified as, or even better qualified than,
Mr. Malone. EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995). Instead,
2

Even assuming that the appropriate causation standard to apply to this claim is the “substantial
factor” test, the Court would reach the same conclusion and the same disposition of Plaintiff’s ADEA
disparate treatment claim for the reasons stated in these Findings of Fact and Conclusions of Law.
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Plaintiff faces the heavy burden of showing that she was “clearly better qualified” than Mr.
Malone. Id. The “bar is set high for this kind of evidence.” Moss v. BMC Software, Inc., 610
F.3d 917, 923 (5th Cir. 2010). To clear this tall hurdle, Plaintiff had to show that “no reasonable
person, in the exercise of impartial judgment, could have chosen” Mr. Malone instead of her for
the Mississippi General Manager position. Id. For the reasons stated in the Court’s factual
findings (para. 46 supra), the Court finds that Plaintiff did not present sufficient evidence at trial
to meet this heavy standard.
67.

As to the “pattern and practice” evidence, this method of proof may not be used in

a lawsuit that is not a class action. See Roy v. U.S. Dep’t of Agric., 115 F. App’x 198, 201 (5th
Cir. 2004) (per curiam) (holding that a “‘pattern and practice of discrimination’ claim . . . is
inapplicable to [an] individual claim of racial discrimination” (citing Celestine v. Petroleos de
Venezuella SA, 266 F.3d 343, 356-57 (5th Cir. 2001)); Frank v. Xerox Corp., 347 F.3d 130, 136
(5th Cir. 2003) (holding that the plaintiffs’ pattern or practice claims fail in light of Celestine);
Richmond v. Coastal Bend Coll. Dist., 883 F. Supp. 2d 705, 718 (S.D. Tex. 2012) (“In the Fifth
Circuit, the pattern-or-practice method of proof is not available in private, non-class action
lawsuits.” (citing Frank, 347 F.3d 136)). It is undisputed that Plaintiff brought an individual
claim; thus, her attempt to utilize this method of proof fails. Even if Plaintiff were able to use
this method of proof, for the reasons stated in the Court’s factual findings (para. 60 supra), the
Court finds that Plaintiff did not present any probative evidence of a general pattern or practice.
68.

Plaintiff’s evidence that Mr. Harris made several remarks about her age likewise

fails to establish her burden. In order for these remarks to constitute relevant circumstantial
evidence of discrimination, Plaintiff was required to demonstrate that Mr. Harris was either
“primarily responsible for” the Mississippi General Manager selection or that he had “influence
20

or leverage over” Mr. Wardlaw, the ultimate decision-maker. Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226 (5th Cir. 2000); see also Reed v. Neopost USA, Inc., 701 F.3d 434,
441-42 (5th Cir. 2012) (to be admissible, discriminatory remarks must be made by someone
responsible for the employment decision); Rubenstein v. Administrators of Tulane Educational
Fund, 218 F.3d 392, 401 (5th Cir. 2000) (noting that the comments must be “made by an
individual with authority over the employment decision at issue”). There was no credible
evidence presented at trial that Mr. Harris had any involvement in Mr. Wardlaw’s decision. Nor
was there any evidence that Mr. Harris had any leverage over Mr. Wardlaw (Mr. Harris’s boss)
in making the decision of who should fill the Mississippi General Manager position. Thus, even
assuming Mr. Harris made ageist statements about Plaintiff, they cannot be used to establish that
an entirely different person—Mr. Wardlaw—engaged in age discrimination.
69.

With respect to Plaintiff’s claim that the interview process was subjective, the

Court finds that subjective reasons can be just as valid as objective reasons.” Chapman v. AI
Transp., 229 F.3d 1012, 1034 (11th Cir. 2000). Indeed, “subjective evaluations of a job
candidate are often critical to the decision-making process.” Id. at 1033. TVA’s subjective
decisions were legally sufficient because it “articulate[d] a clear and reasonably specific factual
basis upon which it based its subjective opinion.” Id. at 1034.
70.

Finally, the Court observes that, in light of the other evidence presented, Mr.

Malone’s age—49 years old—fails to create any reasonable inference that age could have been a
factor motivating Mr. Wardlaw to choose Mr. Malone over Plaintiff. In order to create the
inference that Mr. Wardlaw’s decision was infected by age discrimination, it was Plaintiff’s
burden to demonstrate that the selectee was “substantially younger” than she. See, e.g., Flanner
v. Chase Inv. Servs. Corp., 600 F. App’x 914, 918 (5th Cir. 2015) (“[A] plaintiff’s replacement
21

must be ‘substantially younger’ to create an inference of discrimination.”). In the Fifth Circuit,
there is no age disparity that serves as a bright-line cut-off that will or will not establish that the
beneficiary of an employment action is “substantially younger” than the aggrieved plaintiff. See
Flanner v. Chase Inv. Servs. Corp., 600 F. App’x 914, 919 (5th Cir. 2015). But it has noted that
a five or six year difference is a “close call,” and in such instances, a court should “consider[] the
relative ages of the plaintiff and the replacement employee as evidence on the ultimate issue of
proving ‘but for’ causation.” Flanner v. Chase Inv. Servs. Corp., 600 F. App’x 914, 919 (5th
Cir. 2015).
71.

The Court finds, under the circumstances, that the minimal disparity in Plaintiff’s

and Mr. Malone’s ages is not enough to warrant an inference of discrimination, particularly in
light of the fact that Plaintiff presented no other probative evidence in support of her claim.
CONCLUSION
In accordance with the foregoing findings of fact and conclusions of law, the Court finds
that judgment should be entered against the Plaintiff, and in favor of Defendant, on Plaintiff’s
ADEA claim. The Court will enter judgment accordingly.
This, the 19th day of January, 2017.
__/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE

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